[1] Whether a road management authority may restrain installation of a facility that obstructs the function of a road without justifiable grounds (affirmative)

[2] The case holding that the defendants' act of assaulting public officials who lawfully perform their official duties based on road management authority constitutes obstruction of the performance of official duties in case where the defendants committed an injury or assault to public officials under Gap's jurisdiction while installing a farming tent on the sidewalk of the road managed by Gap (Si)

[1] According to Articles 20(1)3 and 13 of the former Road Act (amended by Act No. 11471, Jun. 1, 2012; hereinafter the same), a City/Do (City/Do) shall be the road management agency that recognized the relevant route, and according to Article 16(1) of the Regulations on the Standards for Structures and Facilities of Roads as established by delegation of Article 37(1) of the former Road Act, a sidewalk installed on a road shall constitute a part of the road. According to Article 45 of the former Road Act, no person shall stockpile obstacles on a road or interfere with traffic without justifiable grounds, and the road management agency may take necessary measures or order a person who performs such act to install a road and maintain its existence and provide it to the general traffic, and a road management agency that has the comprehensive management right to manage the road may install a facility without justifiable grounds to demonstrate the function of the road.

[2] In a case where the Defendants inflicted an injury or assault on public officials under the jurisdiction of public officials under the jurisdiction of public officials under the jurisdiction of public officials under the jurisdiction of public officials under the jurisdiction of public officials under the jurisdiction of public officials under the jurisdiction of public officials under the jurisdiction of public officials under the jurisdiction of public officials under the jurisdiction of public officials under the jurisdiction of public officials under the jurisdiction of public officials under the jurisdiction of public officials under the jurisdiction of public officials under the jurisdiction of public officials under the jurisdiction of public officials under the jurisdiction of public officials under the jurisdiction of public officials under the jurisdiction of public officials under the jurisdiction of public officials under the jurisdiction of public officials under the jurisdiction of public officials under the jurisdiction of public officials under the jurisdiction of public officials under the jurisdiction of public officials under the jurisdiction of public officials under the jurisdiction of public officials under the jurisdiction of public officials under the jurisdiction of public officials under the jurisdiction of public officials under the jurisdiction of public officials under the jurisdiction of public officials under the jurisdiction of public officials under the

[1] Articles 13, 20(1)3, 37(1), 45, and 83 of the former Road Act (Amended by Act No. 11471, Jun. 1, 2012); Articles 16(1) of the Rules on the Standards for Structure and Facilities of Roads / [2] Article 136(1) of the Criminal Act; Articles 13, 20(1)3, 37(1), 45, and 83 of the former Road Act (Amended by Act No. 11471, Jun. 1, 2012); Article 16(1) of the Rules on the Standards for Structure and Facilities of Roads

[1] Supreme Court Decision 2011Do10625 Decided February 13, 2014 (Gong2014Sang, 641)

Defendant 1 and one other

Prosecutor

Attorney Yang Chang-young

Gwangju High Court ( Jeju) Decision 2012No79 decided April 24, 2013

The judgment below is reversed, and the case is remanded to the Gwangju High Court.

The grounds of appeal are examined.

1. The crime of obstruction of performance of official duties is established by assaulting or threatening a public official who lawfully performs his/her duties. In determining objectively and rationally in light of the specific circumstances at the time of assault or intimidation, if the performance of his/her duties is deemed legitimate as an act within the scope of his/her authority, the assault or intimidation against the public official constitutes obstruction of performance of official duties (see, e.g., Supreme Court Decisions 91Do453, May 10, 1991; 201Do4763, Aug. 23, 2013).

Meanwhile, according to Articles 20(1)3 and 13 of the former Road Act (amended by Act No. 11471, Jun. 1, 2012; hereinafter the same), a City/Do (City/Do) shall be the road management agency that recognized the relevant route, and according to Article 16(1) of the Regulations on Standards for Structures and Facilities of Roads, which are constructed by delegation of Article 37(1) of the former Road Act, a sidewalk installed on a road constitutes a part of the road structure. According to Article 45 of the former Road Act, no person shall stockpile obstacles on a road or interfere with traffic without justifiable grounds. According to Article 45 of the former Road Act, a road management agency may take necessary measures or order a person who performs such act pursuant to Article 83 of the former Road Act with respect to the construction of a road and maintenance of its existence, and a road management agency that has comprehensive management rights to ensure the original purpose of the road by providing it for general traffic may prevent installation of a facility without justifiable grounds.

2. A. The reasoning of the lower judgment and the evidence duly admitted by the lower court revealed that: (a) the Defendants voluntarily requested removal on October 25, 201 in front of the Jeju Special Self-Governing Province Office, the Jeju Special Self-Governing Province Governor, Jeju Special Self-Governing Province Governor and △△△△△△△△△△ Group, which was held by the Jeju Special Self-Governing Province Association on the roads in front of the Jeju Special Self-Governing Province Office, around October 10, 201; (b) the Defendants attended the National Assembly ratification of the Korea-U.S. Free Trade Agreement, which was held by the Jeju Special Self-Governing Province Governor and the Jeju △△△△△△△△△△△△△△△ Group; and (c) the Defendants, at around 10:25 of the same day after the completion of the said conference, were fighting with the members of the farmers’ organizations to move to the front door of the Jeju Special Self-Governing Province, on the grounds that there was danger to pedestrian safety and harm to traffic.

B. Examining these facts in light of the above legal principles, the act of Jeju Viewing public officials, who are road management authorities, in this case, intended to restrain the Defendants from installing a tent on the instant sidewalk or remove the tent in which they are installed, constitutes an act within the scope of management rights to prevent prohibited acts on the roads stipulated in Article 45 of the former Road Act, such as the act of installing facilities that interfere with the function of the sidewalk, which are part of the road, under Article 83 of the former Road Act, and constitutes an act within the scope of management rights to ensure that the original purpose of the sidewalk is achieved. Accordingly, the Defendants’ act of assaulting public officials who lawfully perform their official duties on the basis of such road management rights constitutes obstruction of the performance

C. Nevertheless, the court below found the Defendants not guilty on the grounds stated in its reasoning, on the grounds that the act of the public officials belonging to the Jeju Viewing Construction and Transportation Bureau, who prevented the Defendants from installing or removed the tent installed, was not a legitimate execution of duties, and thus, did not commit assault, etc. to the said public officials. This is a matter of course by misapprehending the legal principles on the scope of road management rights of road management authorities, thereby making a judgment on the legality of performing official

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)